THE MOKNTK Gr STAB, ; WILMIK GTOK , K. C, WEDNESDAY, DECEMBER 6, 1911. PAGE 2. y of was reasonable at common law, De cause It was said that the statute was directed against all contracts and com binations In restraint of trade, whether . reasonable at common law or not It was plain from the record, however, that the. contracts complained' of in those cases would not have been deem ed reasonable at common law. In sub sequent cases the court said that the statute should be? given a reasonable construction and refused to include within its inhibition certain contrac tual restraints of trade which It de nominated as incidental or as indirect These cases of restrant of trade that the court excepted from the operation of the statute were instances which at common law would have been call ed reasonable. In the Standard Oil and tobacco cases, therefore, the court merely adopted the tests of the com mon law and In defining exceptions to the literal application of the statute only substituted for the test of being incidental or Indirect that of being 'reasonable, and this without varying In the slightest the actual scope and effect of the statute. In other words, all the cases under the statute which have now been decided would have been decided the same way If the court had originally accepted in Its construction the rule at common law. It has been said that the court by in troducing into the construction of the statute common law distinctions has emasculated it This Is obviously un true. By its Judgment every contract and combination in restraint of inter state trade made with the purpose or necessary effect of controlling prices by stifling competition or of establish ing in whole or in part a monopoly of such trade is condemned by the stat ute. The most extreme critics cannot instance a case that ought to be con demned under the statute which is not brought within its terms as thus con strued. The suggestion Is also made that the supreme court by. its decision in the last two cases has committed to the court the undefined and unlimited dis cretion to determine whether a case of restraint of trade is within the terms i of the statute This la wholly untrue. A reasonable restraint of trade at com mon law is well understood and is clearly defined, j It does not rest in the discretion of the court; It must be -. limited to accomplish the purpose of a lawful main contract to which in order that it shall be enforceable at all it must be incidental. If it exceed the needs of that contract it is void. The test of reasonableness was never applied by the court at comman law to contracts or combinations or con spiracles in restraint of trade whose purpose was or whose necessary effect would be to stifle competition, to con trol prices or establish monopolies. The courts never assumed power to say that such contracts or combina tions or conspiracies might be lawful If the parties to tbem were only mod erate in the use of the power thus se cured and did not exact from the pub lic too great and exorbitant prices. It is true that many theorists and others ' engaged in business violating the stat ; ute haye hoped that ' some such line could be drawn by courts, but'no court of authority has ever attempted "it Certainly there is nothing in the deci sions of the latest two cases from .which such a dangerous theory of Ju dicial discretion in enforcing this stat ute can derive the slightest sanction. Force and Effectiveness of Statute a Matter of Growth. We have been twenty-one years mak ing this statute effective for the pur poses for which! it was enacted. The Knight case was discouraging and deemed to remit to the states the whole available power to attack and suppress the evils of the trusts. Slowly, howev er, the error of that Judgment was cor rected, and only in the last three or four years has the heavy, hand of the law been laid upon the great Illegal combinations that have exercised such an absolute dominion over many of our Industries. Criminal prosecutions have been brought and a number are pend ing, but Juries have felt averse to con victing for Jail sentences and Judges have been most reluctant to impose such sentences on men of respectable standing in society whose offense has ' been regarded as merely statutory. Still, as the offense becomes better un derstood and the committing of if par takes more of studied and deliberate defiance of the law we can be confi dent that Juries will convict individu als and that Jail sentences will beTlm posed. . - ' . The Remedy In Equity by Dissolution. In the standard Oil case the supreme and circuit courts found the combina tion to be a monopoly of the Interstate business of refining, transporting and marketing petroleum and its products, effected and maintained through thirty-seven different corporations, the slock of which was held by a New Jer sey company. It in effect commanded the dissolution of this combination, di rected the transfer and pro rata distri bution by the New Jersey company of the stock held by it in the thirty-seven corporations to and among its stock holders, and the corporations and indi vidual defendants were enjoined from conspiring or combining to ; restore such monopoly, and all agreements be tween the subsidiary corporations tend ing to produce or bring about further violations of the act were enjoined. In the tobacco case the court found that the individual defendants, twenty-nine in number,- had been engaged in a successful effort to acquire com plete dominion over the manufacture, sale and distribution of tobacco In this country and abroad and that this had been. done by combinations made with a purpose and effect to stifle competl tion, control prices and establish' a monopoly, not only in the manufacture of tobacco, but also of tin foil and lic orice used in its manufacture and of its products of cigars, cigarettes and snuffs. The tobacco suit presented a far more complicated and difficult case than the Standard Oil suit for a decree which would effectuate the will of the court and end the violation of the stat ute. There was here no single hold- ing company, as tk tare" case or we Standard Oil trust The main company was the American Tobacco company, a manufacturing, selling and holding company. The plan adopted to de stroy the combination and restore com petition involved the redivision of the capital and plants of the whole trust between some of the companies con stituting the trust and new companies organized for the purposes of the de cree and made parties to It and num bering, new and old, fourteen. Situation After Readjustment The American Tobacco company (old), readjusted capital $92,000,000; the Liggett & Meyers Tobacco company (new), capital $07,000,000; the P. Loril Iard company (new), capital $47,000, 000, and the R. J. Reynolds Tobacco company (old), capital $7,525,000. are chiefly engaged in the manufacture and sale of chewing and smoking to bacco and cigars'. The former one tin foil company is divided Into two, one of $825,000 capital and the other of $400,000. The one snuff company is divided Into three companies, one with a capital of $15,000,000, another with a capital of $8,000,000 and a third with a capital of $8,000,000. The licorice companies are two, one with a capital of $5,758,300 and another with a capi tal of . $2,000,000. There is also the British-American Tobacco company, a British corporation, doing business abroad with a capital of $20,000,000, the Porto Rican Tobacco company, with, a capital of $1,800,000, and the corporation of United Cigar Stores, With a capital of $9,000,000. Under this arrangement each of the different kinds of business will be dis tributed between two or more compa nies with a division of the prominent brands in the same tobacco products, so as to make competition not only possible, but necessary. -Thus the smoking tobacco business of the coun try is divided so that the present in dependent companies have 21.39 per cent while the American Tobacco com pany will have 33.08 per cent, the Lig gett & Meyers 20.05 per cent the Loril lard company 22.82 per cent and the Reynolds company 2.66 per cent The stock of the other thirteen companies, both preferred and common, has been taken from the defendant American Tobacco company and has been dis tributed among its stockholders. All covenants restricting competition have been declared null and further per formance of them has been enjoined. The preferred stock of the different companies has now been given voting power which was denied it under the old organization. The ratio of the pre ferred stock to the common was as 73 to 40. This constitutes a very decided change in the character of the owner ship and control of each company. In the original suit there were twenty-nine defendants, who were charged with being the conspirators through whom the illegal combination acquired and exercised its nnlnwfnl dnmlnlnn I Under the decree these defendants will hold amounts of stock in the various distributee companies ranging from 41 per cent as a maximum to 28 per cent as a minimum, except in the case of one small company, the Porto Rican Tobacco company, in which they will hold 45 per cent The twenty-nine In dividual defendants are enjoined for three years from buying any stock ex cept from each other, and the group is thus prevented from extending its con trol during that period. All parties to the suit and the new companies " who are made parties are enjoined perpet ually from in any way effecting any combination between any of the com panies in violation of the statute by way of resumption of the old trust Each of the fourteen companies is en- Joined from acquiring stock in any of the others. All these companies are enjoined from having common direc tors or officers, or common buying or r selling agents, or common offices, or lending money to each other. Size of New Companies. Objection was made by certain in dependent tobacco companies that this settlement was unjust because it left companies with very large capital ia active business and that the settle ment that would be effective to put all on an equality would be a division of the capital and plant of the trust into" small fractions in amount' more near ly equal to that of each of the inde pendent companies. This contention results from a misunderstanding of the anti-trust law and its Duroose. It is not intended thereby to prevent the accumulation of large capital in busi ness enterprises in which such a com bination can secure reduced cost of production, sale and distribution. It is directed against' such an aggrega tion of capital only when its purpose is that of stifling competition, enhanc ing or controlling prices and establish ing a monopoly. If we shall have by the decree defeated these purposes and restored competition between the large units into which the capital and plant have been divided we shall have accomplished the useful purpose of the statute. Confiscation Not the Purpose of the Statute. It is not the purpose of the statute to confiscate the property and capital Of the offending trusts. Methods of punishment by fine or imprisonment of the Individual offenders, by fine of the corporation or by forfeiture of its goods in transportation are provided, but the proceeding In equity is a spe cific remedy to stop the operation of the trust , by injunction and prevent the future use of the plant and capital in violation of the statute. Effectiveness of Decree. I venture to say that not in the .his tory of American law has a 'decree more effective for such a purpose been entered by a court than that against the tobacco trust As Circuit Judge ' Noyes" said in his Judgment approving the decree: . . - . "The extent to which it has been necessary to tear apart this combina tion and force it into new forms with the attendant burdens ought to demon strate that the federal anti-trust statute is a drastic statute which accomplishes effective results, which so long as It stands on the statute books must be obeyed and "which canndt be disobey ed without Incurring f arreachlng pen alties. And, on the other hand, the successful reconstruction of this "or ganization should teach that the effect Of enforcing this statute is not to de stroy, but to reconstruct.; not to de molish, but to recreate In " accordance with the conditions which the congress has declared shall exist among the people of the United States." ' Common Stock Ownership.' It has been assumed that the pres ent pro rata and common ownership in all these companies by former stock holders of the trust would Insure a continuance of the same old single con trol of all the companies into Which the trust has by decree been dislnte grated. This is erroneous and is' based upon the assumed inefBcacy and Innoc uousness of judicial injunctions. ' The companies are enjoined from cc-o'pera-tion or combination; they have differ ent managers, directors, purchasing and sales agents. If all or many of the numerous stockholders, reaching into the thousands, attempt to secure concerted action of the companies with aNview to the control of the market their number is so large that such an attempt could not well be concealed, and Its prime movers and all its partic ipants would be at once subject to con tempt proceedings and imprisonment Of a summary character. The immedi ate result of the presnt situation will necessarily be activity by all the com panies under different managers, and then competition must follow or there will be activity by one company and stagnation by another. . Only a short time will Inevitably lead to a change in ownership of the stock, as an op portunity for continued co-opera tloa must disappear. Those critics who speak of this disintegration in the trust as a mere change of garments have not given consideration to the Inevitable working of the decree and understand little tb personal danger of attempt ing to evade or set at naught the sol emn Injunction of a court whose object is made plain by the decree and whose inhibitions are set forth with a detail and comprehensiveness unexampled in the history of equity jurisprudence. Voluntary Reorganizations of Other Trusts at Hand. The effect of these two decisions has led to decrees dissolving the combina tion of manufacturers , of electric lamps, a southern ' wholesale grocers association, an interlocutory decree against the powder trust with direc tions by the circuit court compelling dissolution, and other combinations of a similar history are now negotiating with the department of justice looking to a disintegration by decree and re organization in accordance with law. It seems possible to bring about these reorganizations without general busi ness disturbance. Movement For Repeal of the Anti trust Law. But now that the anti-trust act is seen to be effective for the accomplish ment of the purpose of its enactment -we are met by a cry from many differ ent quarters for its repeal. It is said to be obstructive of business progress, to be an attempt to restore old fash ioned methods of destructive competi tion between small units and to make impossible those useful combinations of capital and the reduction of the cost of production that are essential to con tinued prosperity and normal growth. In the recent decisions the supreme court makes clear that there is noth ing in the statute which condemns combinations of capital of mere big ness of plant organized to secure econ omy in production and a reduction of its cost It is only when the purpose or necessary effect of the organization and maintenance of the combination or the aggregation of immense size are the stifling of competition, actual and potential, and the enhancing of prices and .establishing a monopoly that the statute is violated. Mere size is no sin against the law. The merging of two or more business plants necessari ly eliminates competition between the units thus combined, but this elimina tion is in contravention of the statute only when the combination is made for purpose of ending this particular com petition in order to secure control of and enhance "prices and create a mo nopoly. Lack of Defjnitenees In the Statute. The complaint is made of the stat ute that it is not sufficiently definite in its description of that which is for bidden to enable business men to avoid Its violation. The suggestion, is that we may have a combination of two corporations which may run on for years and that subsequently the at torney general may conclude that it was a violation of the statute and that which) was supposed by the combiners to be innocent then turns out to be a combination in violation of the statute. The answer to this hypothetical case is that when men attempt to amass such stupendous capital as will enable them to suppress competition, control prices and establish a monopoly they know the purpose of their - acts. Men dp not do such a thing without having it clearly in mind. If what they do is merely for the purpose of reducing the cost of production, without the thought of suppressing competition by use of the bigness of the plant they are creating,, then they cannot be convicted at the time the union is made, nor can they be convicted later unless it happen that later on they , Conclude .to sup press competition and take the usual methods for doing so and thus estab lish for themselves a monopoly. . They Can in such a case hardly complain if .the motive which subsequently is dis closed is attributed by the court to the original combination. " New Remedies Suggested. - Mu Is said ,of the repeal of this statute and of constructive legislation intended to accomplish the purpose and blaze a clear path for honest mer chants and business men to follow. It may be that such a plan will be Evolved, but I submit that the discus sions which have been brought out In recent days tJ the fear of the con- tiauedeJtecutRm p".fr toe anti-trust law have - preucedfyoming ijut: glittering generalities and have offered no 'line of distinction or rule of action as defi nite and as clear as that which the su preme court Itself lays down in en forcing the statute.' ; T r- Supplemental Legislation Needed, Not . Repeal or Amendment ' 1 I. see no objection, and Indeed I. can see decided advantages.' in the enact ment of a law which shall describe .and denounce methods of competition which are unfair and nre badges of the unlawful purpose denduhced . In the antl-trusj; law.y The attempt and pur pose to suppress n competitor by un derselling him at a price sounprofita ble as t$ drive him out of business Or the making ot exclusive contracts with customers;, under which they are re quired to . jfive up association with oth er "manraqturers and numerous kin dred methods for stifling competition and effecting monopoly should be de scrlbedUwith sufficient accuracy In "a criminal1 statute on the one handy to enSble tne government to shorten Ife task-by, prosecuting single misdemean ors Instead of an entire conspiracy and on the other hand to serve the purpose of pointing out' more In detail to the business community what must be avoided. Federal Incorporation Recommended. In a special message to congress on Jan. 7. 1910. I ventured to point out the disturbance to Dusmess tnat wouia probably attend the dissolution of these offending trusts. ; I said: "But such an investigation and pos sible prosecution of corporations whose prosperity of' destrtfcfton affects the comfort not only of stockholders, but of millions of wage earners, employees and associated tradesmen, must neces sarily tepd" tq disturb the confidence of the tftj&iness comfx&mlty', to dry up the now-flowing sources of capital from its places of hoarding and pro duce a halt in our present prosperity that will cause suffering and strained circumstances among the innocent many fon-the faults of the guilty few. The question which! I wish in this messaget.o bring cldarly to the con sideration and discussion of congress Iswhether. in order to avoid such a possible business danger, something cannot be done by which these busij ness combinations may be offered a means, without great financial dis turbance, of changing the character, organization and extent of their busi ness into one within the lines of the law under federal control and super vision, securing compliance with the anti-trust statute. "Generally in the industrial combina tions cajll 'trusts' the principal busi ness is the sale of goods in many states and in foreign markets in othtr words, the interstate and foreign business far exceeds the buslncsjfdone in any one state. This fact will justify the fed eral government in! granting a federal charter to such a combination to make and sell .in interstate and foreign com merce the products ef useful manufac ture under sucjb Hmrfajions as will se cure a compUathce withtythe anti-trust law JtflTpossible so to frame a stat ute thatwhile It pffers protection to a federal ctopany tfgalnst harmful, vex atious anS unnecessary invasion by the states, it shall subject It to reasona ble taxation and control by the states with respect to its purely local busi ness. "Corporations organized under this act should be prohibited from acquir ing and holding stock iu other corpo rations (except for special reasons, upon approval by the proper federal authority), thus avoiding the creation under national auspices of the holding company with subordinate corporations In different states, which has been such an effective agency in the crea tion of the great trusts and monopo lies. "If the prohibition of the anti-trust act against combinations in restraint of trade is to be effectively enforced it is essentia that the national govern ment shall provide for the creation of national corporations to carry on a le gitimate business throughout the Unit ed States The conflicting laws of the different? states of 'the Union with re spect to foreign corporations make it difficult, jif not impossible, for one cor poration -to comply with their require ments so as to carry on business in a number of different states. I' renewthe" recommendation of the enactment of a general law providing for the 'voluntary,, formation of cor porations to engage In trade and com merce, among the states and with for elgn nations. Every argument which was then advanced for such a law and every explanation which was at that time offered to possible objections has been confirmed by our experience since the enforcement of the anti-trust stat ute has resulted in the actual dissolu tion of active commercial organiza tions. ' It Is even more manifest now than it was then that the denunciation of conspiracies in restraint of - trade should not and does not mean the de nial of organizations large enough to be intrusted wirhfbur interstate and foreign-tfade. It has been made more clear now than It was then that a purely negative statute like the anti trust law may well be -supplemented by specific" provisions for the. building up, and regulation of legitimate na tional and foreign .commerce. Goernment Administrative Experts 'Needed tc- Aid, Cburts In Trust -'. .J Dissolutions. r The drafting of the decrees in the 'dissolution of the present trusts, with a view to their reorganization Into le gitimate corporations, has made it es pecially apparent that the courts are not provided with the administrative i machinery to make the necessary In quiries preparatory to reorganization or to pursue such -inquiries, and they should be empowered to Invoke the aid of the bureau of , corporations in determining the suitable reorganiza tion of the disintegrated parts. The circuit court and, the attorney general! ?were greatly ajidea in rraming tne ae cree inrthe tobacco trust dissolution by: an expert from the bureau of corpora tions. x - " .. '.; Federal Corporation Commission Pro " '-'posed. I do not set forth la detail the terms and sections of a statute which might supply the constructive legislation per mitting and aiding the formation of combinations of capital into federal corporations. They should be subject to rigid rules as to their organization and procedure!: including effective -publicity, and to the closest supervision as to the issue of stock and bonds by an executive bureau or commission in the department of commerce and labor, to which in . times of doubt they might well submit their proposed plans for future business. It must be distinctly understood that incorporation under a federal law could not exempt the com pany thus formed and Its incorporators and managers from prosecution under the anti-trust law for subsequent il legal conduct but the publicity of its procedure and the opportunity for fre Qcent consultation with the bureau or commission In charge of the incorpora tion as to the legitimate purpose of its transactions would offer It as great se curity against successful prosecutions for violations of the law as would be practical or wise. Such a bureau or commission-might well be invested also with the duty already referred to of aiding courts in the dissolution and recreation of trusts within the law. It should be an executive tribunal of the dignity and power of the comptroller of the cur rency or the interstate commerce com mission, which now exercises supervis ory power over important classes of corporations under federal regulation. The drafting of such a federal in corporation law would offer ample op portunity to prevenCVnany manifest evils in corporate intinagement today. Including irresponsibility of control in the hands of the few who are not the real owners. Incorporation Voluntary. I recommend that the federal char ters thus to be granted shall be volun tary, at least until experience justifies mandatory provisions. The benefit to be derived from the operation of great businesses, under the protection of such a charter would attract all who are anxious to keep within the lines of the law. Other large combinations that fail to take advantage of the federal incorporation will not have a right to complain if their failure is ascribed to unwillingness to submit their transac tions to the careful official scrutiny, competent supervision and publicity attendant upon the enjoyment of such a charter. Only Supplemental Legislation Needed. The opportunity thus suggested for federal Incorporation, it seems to me, Is suitable constructive legislation needed to facilitate the squaring of great industrial enterprises to the rule j of action laid down by the anti-trust I law. This statute as construed by the ' supreme court must continue to be the line of distinction for legitimate busi ness. It must be enforced "unless we are to banish lndividnaliscV from all business and reduce it to one common system of regulation or control of prices like that which now prevails with respect to public utilities and which when applied to ail ' business would be a long step toward state so cialism. Importance of the Anti-trust Act The anti-trust act is the expression of the effort of a freedom loving peo ple to preserve equalitJTof opportunity. It is the result of the confidenfdeter mlnation of such a people to maintain their future growth by preserving un controlled and unrestricted the enter prise of the Individual, his industry, his ingenuity, his intelligence and his independent courage. For twenty years or more this stat ute has been upon the, statute book. All knew its general purpose and ap proved. Many of its violators were cynical over Its assumed impotence. It seemed Impossible of enforcement Slowly the mills of the courts ground, and only gradually did the majesty of the law assert Itself. Many of its statesmen-authors died before It be came a living force, and they and oth ers saw the evil grow which they had hoped to destroy. Now Its efficacy Is seen; now Its power Is heaVy; now its object Is near achievement Now we hear the call for Its repeal on the plea that it Interferes with business pros perity, and we are advised In most general terms bow by some other stat ute and In some other way the evil we are just stamping out can be cured If we only abandon this work of twen ty years and try another experiment for another term of years. It is said that the act has not done good. Can this be said in the face of the effect of the Northern Securities decree? That decree was In. no way so drastic or lnhibitive in detail as ei ther the Standard Oil decree or the tobacco decree. But did It not stop for all time the then powerful move ment toward the control of 'all the railroads of the country in a single hand?. Such a one man power could not have been a 'healthful influence In the republic, even though exercised under the general supervision of an interstate commission. . Do we desire to make such ruthless combinations and monopolies lawful? "When all energies are directed,' not to ward the reduction of the cost of pro duction for the public - benefit by a healthful competition, but toward new ways and means , for making perma nent in a few hands the absolute con trol of the conditions and prices pre vailing in the whole field of industry, then individual enterprise and effort will , be paralyzed and the spirit of commercial freedom will be dead. WMr H. TAFT. The White House, Dec. 5, 191L . ' To clean white palat. jilp a 'dean cloth In hot water, then In, bran and rub it. Rinse .with clear water ., : iz PILES Cl'RED IN 6 TO 14 DAYS. Yorr dmepist will refund monev if PAZO OINTMENT . falls to -enre- anv of Itching. BUnrt, Bleedinsr or Protruding1 Piles in 6 to 14. days. 50c., : , V - " 9 yl(adls . . It Is natural for a child, to laugh and play and when it sulks drowsily or cries you may depend on it something physical is the matter. If you see no evidences of a serious ailment you will not be wrong- If you quietly give It a dose of mild laxative that evening: on putting it to bed. i The remedy most generally recom mended for this purpose is Dr. Cald well's Syrup Pepsin, which mothers throughout the country have been giving their children for a quarter of a cen tury. Today thousands of families are using it where - hundreds used it then, and there must be good reason for this word of mouth recommendation. It Is admittedly the perfect laxative for children, women, old people and all others who need a gentle bowel stimu lant and not a violent salt, cathartic pill or doctored water. Dr. Caldwell's Syrup Pepsin will act gently, and when taken before retiring will bring com If The intervening days will be thronged thick and deep with Christmas shoppers. This store offers a complete stock of very fine quality and affords every possible facility for accurate service. 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